tv Evan Davis on United States v. Nixon Part 1 CSPAN July 13, 2014 8:00pm-8:11pm EDT
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202-626-8888. long distance or phone charges may apply. >> up next on american history tv, a panel of scholars discuss united states foreign policy ward totalitarianism with an emphasis on world war ii, the cold war, and american involvement in the middle east. this is part of a series hosted by ames james madison program, the association for the study of free interests constitutions, and texas tech university. this program is an hour and a alf. >> joining us on american
history tv is evan davis. >> good to be here. >> take us back to the issues the court would decide. >> the basic issue the court was going to decide was whether the court had to turn over tape recordings that had been made at the white house that had bven subpoenaed by the special prosecutor. ed special prosecutor was a key player. the other key player was the house judiciary committee, chaired by peter vidino, because they had subpoenaed many of the same tape recordings, and they were also eager to get those ecordings. the third three player was the president and his council, james st. clare that were resisting the production of these tache recordings. and since your listeners are going to be listening to the oral argument, let me quickly review the for issues that the court is going to be deciding. whether question is
the court has jurisdiction over this dispute. normally the court doesn't hear a dace case until it is entirely over. this was an subpoena that dealt with production of evidence prior to trial, and the case was not entirely over. so the president was arguing that because the order was not final, it should not be reviewed at this time. the court did not have jurisdiction. the special prosecutor was arguing it did have jurisdiction. the second argument is judiciability. a big word that means, is this a proper question for the court to decide? the president's lawyer was arguing this was basically an internal dispute in the executive branch between the president and the department of justice. and it was not a question fit for judicial resolution.
the special prosecutor was arguing that because he had explicit independent authority to seek these documents and tapes, that this was a proper question for the court to decide. the third issue was whether under the applicable rule governing the subpoena, called rule 17, the standards for the issuance for the subpoena had been met, and the president's lawyer was arguing those standards had not been met. the special prosecutor was arguing that they had. after all of that, they reached the $64 million question. what is the scope of executive privilege? the president was arguing rough his lawyer that he had absolute privilege that the court did not have any right to demand information about presidential conversations. they were governed by executive
privilege, period. the special prosecutor was arguing that there was no absolute right of executive privilege and whatever right existed was out-weighed by the need of the evidence. so those were the four basic questions presented to the court. the case was argued by the supreme court. it was a long argument f. it is unusual for the court to hear argument in the month of july. that's generally their summer break. it is unusual for the court to hear from the district court before waiting for the district intermediate appellate court to decide. the court said there was a public interest in the prompt resolution of the matter, and itt's why they dealt with it in in way.
>> it was the point that we heard throughout 1973 and 1974 by then president richard nixon. what's executive privilege? we know how the court decided it was unanimous decision against the president, but explain that point. >> well, part of the working of executive privilege, sometimes k,"ed "deliberative process the idea is that while the president is having conversations with advisors, deciding what to doo and what there has to be some scope of confidentiality to observe the advisors to be candid and not fear publication of their advice will cause them a problem and therefore they will be less than candid. that is the notion behind executive privilege. the court was, you know, considering first, is that a valid notion?
secondly, if it does exist, what is its scope and what would out-weigh it in a particular ircumstance? remember i said the president was arguing it. it is a privilege. the special prosecutor was arguing it was out-weighed by obtaining t in evidence for criminal prosecution. >> william rehnquist recused himself from the initial argument and decision. why? >> it is common practice if a justice has worked on a matter prior to joining the court and office of s in the the attorney general, and he had worked on this matter, and it would be common in those circumstances when a lawyer had worked on a matter for one side or the other, and rehnquist had
essentially worked for the department of justice and or the president to take himself out of the case. so his recusing himself was not unusual, it's what lawyers would have expected him to do. >> did it make a difference in the outcome? could it have been an 8-1 decision until instead of a unanimous decision? >> that's one of the things we'll never know. he was not in the case. he did not participate in the argument. he did not vote. and i'm sure he followed the rules and did not try to influence other justices in their vote. so we'll never know the answer to that question. however, i think since it was an 8-0 judgment, it would have required extremely strong feelings to make it a -- to make it 8-1, because one would then stand out in a particularly strong way. >> the special prosecutor in this case, leon jaworsky, from
his standpoint, what was at stake? >> he needed this information -- that's what he told the court -- he needed the information to prosecute his indication against white house subordinates. there had been an indictment. there was going to be a trial. he needed all the evidence he could get that was relevant and appropriate so that he could present that to the jury, and the jury could determine what the truth is. like any prosecutor, i think he has a little bias in hoping that he's going to win this case and that leaving this evidence is relevant and will probably help him win. the main point from the court's point of view is that it will help the jury arrive at the truth. >> evan davis, you served on the house judiciary staff back in 1974. later,look back 40 years our auth audience listening to the oral arguments, what should they listen for? >> well, they should looks for
the thinking of the judges and their attitude about whether the president deserves special protection. if he deserves special protection, how much special rotection? i think as you listen to the argument you will see most of the judges felt the president deserved some form of special protection. you will see in their questions they do not think the president should be treated just like any other person. that there is a special responsibility, special rules, and deserves some level of , but you alsotion have to listen to what their thoughts are on the limits of that special protection. because it is the limits that will determine the outcome. are they agreeing with the president that the protection is absolute, unconditional l. always be given? or are they saying there are